“P.L. 280 &
FEDERAL CONCURRENT JURISDICTION”
Tom Gede, Member
Indian Law & Order Commission • tom.gede@morganlewis.com
California Indian Law Association – 15th Annual
Indian Law Conference
Jackson Rancheria – October 16, 2015
ABOUT THE COMMISSION
• Created by Tribal Law and Order Act of 2010
(TLOA) to advise the President and Congress on
Federal, State and Tribal reforms to strengthen
criminal justice for the 566 Federally recognized
Indian Tribes and Nations.
• Planned and executed comprehensive assessment
of Native American and Alaska Native public
safety and criminal justice.
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Tribal Law and Order Act of 2010
Indian Law and Order Commission (ILOC) created:
 to conduct comprehensive study
of law enforcement and criminal
justice in tribal communities, such as:
 jurisdiction over crimes committed

in Indian country
 tribal jail and federal prisons systems
 juvenile justice systems -- tribal and federal
 the impact of the Indian Civil Rights Act of 1968
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ILOC held field hearings, took
testimony, appointed and
consulted with an Tribal
Advisory Board in all 12 BIA
regions, and worked entirely in
the field – from Alaska to the
East Coast.
Unanimously prepared and
approved THE ROADMAP FOR
MAKING NATIVE AMERICA
SAFER – a 324-page report, with
40 major recommendations.
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Concurent Jurisdiction under
Tribal Law and Order Act of 2010
• TLOA allows Indian tribe in a
mandatory PL 280 state (like
California) to request the U.S. to
accept concurrent jurisdiction
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• Normally . . . U.S. can only resume
criminal jurisdiction in Indian
country when a State retrocedes
PL 280 jurisdiction back to the U.S.,
and the Justice Dept accepts it - - not concurrent state and federal
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The Statute: Section 221(b)
• Indian tribe subject to mandatory PL
280 jurisdiction may request the U.S. to
accept concurrent jurisdiction
• If 221(b) request is accepted, U.S.
Attorney can prosecute violations of
General Crimes Act / Major Crimes Act,
while at same time State authorities can
enforce state Penal Code
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TLOA Section 221(b) =
18 U.S.C. 1162(d)
• Final regs to implement 1162(d) issued
by OAG/DOJ, eff. Jan. 5, 2012
• U.S. Attorney General is
deciding official. Delegated
to Dep. AG
• Recommendations from FBI, COPS,
other fed, state, locals. OJT to staff it
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Sec. 221 Regs – general info
• Only pertains to “mandatory” PL 280
states
• Does not require approval of a state
• Distinct from “retrocession”
• State does not lose criminal jurisdiction
• DOJ view: it already has federal juris. in
“optional” PL 280 states
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Procedures for Request
• Request from chief executive officer of
federally recognized tribe
• To Office of Tribal Justice / DOJ
• Explain why assumption of concurrent
federal jurisdiction will:
(i) improve public safety and criminal law
enforcement, and
(ii) reduce crime in Indian country of tribe
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Process
• OTJ publishes notice within 30 days of
receipt
• sends written notice to state / local
agencies, requests comments 45 days
• comments from U.S. Attorney offices,
FBI, other DOJ
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Eight Factors to be
Considered by DOJ (I)
(i) improve public safety and reduce crime?
(ii) increase availability of law enforcement
resources?
(iii) improve access to judicial resources?
(iv) improve access to detention and
correctional resources?
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Eight Factors to be
Considered by DOJ (II)
(v) comments from FBI, USAO’s, other DOJ
(vi) comments from DOI, BIA, DHS, other
fed agencies
(vii) comments from tribal consultations
(viii) comments others: governors, state
and local law enforcement agencies
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The unspoken “Ninth Factor”
to be Considered by DOJ
$$$ from DOJ budget:
general obligation?
within budget authority?
FY2016 $21M for USA’s in Indian country
FY2016 $34M for FBI in Indian country
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OTJ Testifies to Indian Law &
Order Commission
• Office of Tribal Justice Director Tracy Toulou
testified before ILOC – March 8, 2012
• Noted requests received by Feb 28 of each
calendar year will be prioritized for decision by
July 31 of same calendar year; by Aug 31 for
decision Jan 31 of following year
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Pending and Approved Requests for
Federal Concurrent Jurisdiction (I)
(i) White Earth Nation (MN) – approved March 14,
2013
(ii) Mille Lacs Band of Ojibwe (MN) – noticed
March 19, 2013
(iii) Hoopa Valley Tribe (CA) – noticed October 22,
2012
(iv) Table Mountain Rancheria (CA) – noticed
October 22, 2012
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Pending and Approved Requests for
Federal Concurrent Jurisdiction (II)
(v) Elk Valley Rancheria (CA) – noticed June 4,
2012
(vi) Los Coyotes Band of Cahuilla and Cupeno
Indians (CA) – noticed April 12, 2012
-- N.B. – LCB has withdrawn its application
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White Earth Experience (I)
• From report of Randy Goodwin, Director of
White Earth Dept. of Public Safety
• WEN thought TLOA approach easier than
retrocession
• Background: tribe has “concurrent jurisdiction”
with local county sheriff under MN law if meets
conditions and enters into “cooperative
agreement” w/ local law enforcement.
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White Earth Experience (II)
• 3 separate Law Enforcement Cooperative
Agreements w/ 3 county sheriffs, all different
one from the other
• WEN thought sheriffs had lack of confidence in
WEPD
• Calls & response from SO’s needed
improvement
• Many cases not being charged or were dropped
for different reasons
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White Earth Experience (III)
• Appeared to lack support from District Court
• WEPD continued to build PD
• At ground or “cops” level, some improvements
• Eventually, locals were convinced WEPD was
professional
• MN US Attorney invited WEPD to quarterly
meetings
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White Earth Experience (IV)
• WEN proceeded with submitting application
under 221 of TLOA
• Met with OTJ Director Tracy Toulou
• Application included required elements &
revised tribal constitution and bylaws
• Also included crime statistics on White Earth
Nation; included plans for correctional facility
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White Earth Experience (V)
• After approval, team of counties and WEN
formed to implement TLOA
• Feds, locals, all invited to participate, monthly
meetings
• Developed flow chart for prosecution of
offenses committed on the reservation
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White Earth Experience (VII)
Key next steps:
• Building relationships (unifying cooperative
agreements, radio infrastructure, better
prosecution of cases presented, search warrant
procedural improvements)
• Prosecution Guidelines (MN US Attorney
criminal prosecution guidelines promulgated)
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Caveat: Justice Department Views (I)
• In what is called a “congratulatory letter” accepting
concurrent jurisdiction, Dep AG outlines important
limitations
• Disclaimer: In all cases involving federal criminal
jurisdiction, the Department of Justice will decide
whether or not to investigate and bring charges
• Assumption of jurisdiction does not mean that DOJ will
prosecute all crimes or even all major criminal cases
occurring on the reservation.
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Caveat: Justice Department Views (II)
• “Rather, consistent with its exercise of prosecutorial
discretion in all criminal matters, the Department will
determine which cases can most effectively be
prosecuted at the Federal level and will pursue those
cases.”
• “In this regard, we do not anticipate that we will bring a
large number of cases; rather, we will focus on bringing
cases that will have the greatest impact in increasing
public safety on the White Earth Reservation.”
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Conclusion
• TLOA Section 221 presents as many challenges as
opportunities. It only adds federal jurisdictional
authority as a layer on existing state and tribal
authority.
• However, the concurrent federal jurisdiction can ease
the burden of overstretched or reluctant state/local
criminal law enforcement and judicial resources, and
overstretched or developing tribal law enforcement and
judicial resources.
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